LawNews - Issue 2

NEWS Feb 11, 2022 Issue 2

Inside ■ THE JUDICIARY

From the bar to the bench P06-08

■ D&O INSURANCE

Expect to pay more and receive less P09

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Contents 03-04 TAX INSURANCE CONSULTATION

More work needed on govt’s proposed income protection scheme LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

05 TRUSTEES SETTLORS DECISIONS

Settlor’s wishes: another take on Kain

Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

06-08 DIVERSITY COVID-19 LITIGATORS

10-11

Transitioning to the bench: three judges’ stories

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CPD IN BRIEF

Cyber risk is among a raft of reasons behind a steep rise in insurance premiums for listed companies – if they can get cover at all

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Feb 11 2022 Issue 2

EMPLOYMENT LAW

Big gaps in the govt’s proposed income insurance scheme How do you prevent poor performance issues being disguised as a redundancy if both a worker and business agree?

As a result of covid-19, the government, in conjunction with Business New Zealand and the New Zealand Council of Trade Unions, has developed an income insurance scheme for workers who lose their jobs because of redundancy or illness.

Strongly-held political views are already being aired. From the political left, we are told the proposal creates a double-tiered welfare system which perpetuates inequities – for example, for low-paid women. Those on the political right say it’s another job tax, is not insurance as the levies are a fixed percentage of wages or salary and take no account of risk, and that the scheme will be abused.

Submissions on the 178-page document are due by 5pm on 26 April. Submitters can answer a short survey or provide a detailed submission. Full details are available here: https://www. mbie.govt.nz/business-and-employment/employment-and-skills/ new-zealand-income-insurance-scheme/

Unanswered questions Overall the proposal is overly complex and the policy settings seem to go too far. Throughout the proposal, there are references to ‘redundancy’, being ‘laid off’, ‘displacement’, ‘health conditions’ and ‘disabilities’ but there is no precision.

No consideration is given to how the scheme will affect existing employment law, including the statutory minimum of three months’ lost remuneration in the event of a substantively unjustified dismissal.

There are several significant questions to be asked.

Should this scheme, like the ACC system, have some sort of litigation bar? How will the scheme affect existing redundancy compensation in collective agreements? How do you prevent

Photo: erhui1979 / Getty Images

Simon Schofield

How do you prevent a worker from making unlimited claims of being made redundant every 18 months?

poor performance issues being disguised as a redundancy if both a worker and business agree? Would it be better if the system were voluntary, like KiwiSaver? How will coverage for health and disability conditions deal with issues of bullying? Shouldn’t experience rating be used, as with ACC? How do you prevent a worker from making unlimited claims of being made redundant every 18 months?

That said, given the international backdrop, businesses and workers should engage with the proposal and not too readily dismiss it. Some sort of ongoing financial support for redundant and/or incapacitated workers (outside of ACC) is desirable for businesses and workers alike. Elements of the proposal in light of the covid-19 Wage Subsidy and Resurgence Support Payment are worth consideration. Whether it will pass muster is another question.

No support When a worker is made redundant or is incapacitated due to a

Continued on page 04 03

Continued from page 03 health condition or disability through no fault of their own, they usually have no ongoing financial support. Some large employers may make redundancy payments but most employees on individual employment agreements do not have any right to redundancy compensation.

While Jobseeker Support is provided through Work and Income, payments are minimal and means tested. Access to KiwiSaver is another option if a person is suffering from ‘significant financial hardship’ or is suffering from a ‘serious illness’ but access is tightly guarded. ACC is limited to specific types of injuries. Employees may pursue a personal grievance but termination due to redundancy or medical incapacity in such situations is likely to be substantively justified so lost remuneration is unlikely to be awarded.

While most of the developed world, including Australia, United Kingdom, United States and Canada have some sort of broad ongoing paid statutory support for redundant and/or incapacitated workers, New Zealand does not, outside of ACC. The reason is simple. For most of New Zealand’s history, the percentage of unemployed has rarely reached double figures (currently, it is at an all-time low of 3.2%). Previous attempts to introduce social unemployment insurance fell flat because unemployment was seen as a national responsibility. More recent attempts to introduce redundancy compensation have likewise been politically unpalatable as they were seen as pushing the financial burden onto employers. The result has increased pressure on employees pursuing personal grievances under the Employment Relations Act 2000.

The proposed scheme The government’s solution is to adopt a New Zealand Income Insurance Scheme. At its core, the proposed ACC-style scheme would: ■ cover both redundancy and health conditions and disabilities (outside of ACC); ■ exclude termination for poor performance, serious misconduct, and resignation; ■ cover most workers, including fixed-term, seasonal and casual employees. It would also cover some self-employed and contractors; ■ cover a person who suffers a 20% loss of total earnings where the worker has multiple jobs; ■ be limited to New Zealand citizens and residents; ■ exclude working holiday-makers, international students and temporary work-visa holders but they will still be required to contribute levies; 04

■ start after a worker has made six months’ worth of levy

Simon Schofield

Should this scheme, like the ACC system, have some sort of litigation bar?

contributions in the previous 18 months; ■ comprise of a four-week notice period, followed by a fourweek employer-paid ‘bridging payment’ and then six months’ financial support from the scheme; ■ have the ability to be extended up to 12 months for training and rehabilitation; ■ have an income replacement rate of 80%, which is the same as ACC; ■ be capped at $130,911 per year (adjusted annually) which is the same as the ACC cap; ■ for health and disability claimants: ■ cover those who must stop work entirely or experience a reduction in their capacity to work by at least 50% for at least four weeks; ■ require assessment by the claimant’s medical practitioner with final eligibility assessed by the scheme; ■ make employers responsible for taking reasonable steps to support an employee to continue working; and ■ help employers to make reasonable efforts to keep a job open where a return to work is likely due to a health condition or disability.

■ allow a person to earn 20% of their previous income before abatement kicks in; ■ not affect most other forms of government support such as superannuation; ■ provide support to get back to work through a case management service; ■ require claimants to look for work or prepare to return to work while receiving insurance; ■ cease when a claimant does not accept any job that matches his/her previous income and other terms and conditions; ■ provide a 28-day grace period for travel overseas without affecting entitlement; ■ be administered by ACC; ■ be fully suspended in cases of serious, intentional noncompliance with obligations; ■ have the offences and penalties framework of ACC; ■ provide an ‘efficient and independent dispute resolution process’ similar to ACC; ■ be built to honour the Treaty of Waitangi; ■ be funded by levies on both workers and businesses paying an estimated 1.39% each; and ■ operate two funds: one for redundancy and one for health and disability claims. ■ Simon Schofield is a teaching fellow at the University of Auckland ■

Feb 11 2022 Issue 2

TRUST LAW

More clarification around trustee decision-making Andrew Steele The Court of Appeal in Kain v Public Trust & Ors [2021] NZCA 685 recently settled the lingering question as to whether settlor’s wishes expressed after the creation of a trust have the same legal effect as those given at the time the trust is created.

The judgment is significant in two other ways: ■ it reaffirmed the status and importance of settlor’s wishes more generally in trustee decision-making; and ■ it clarified whether trustees are bound to take into account the benefits received (or which might be received) by beneficiaries under different family trusts settled by the same settlor.

The judgment involved an application by the Public Trust, qua trustee, for directions under s 66 of the Trustee Act 1956. Such an application would now be made under s 133 of the Trusts Act 2019.

Settlor’s wishes It is well understood by lawyers that trustees are entitled to take into account the settlor’s wishes when exercising their powers and discretions but that they are not required to do so.

In New Zealand, the principle was settled in Chambers v S R Hamilton Corporate Trustee Ltd [2017] NZCA 131. The judgment in Chambers left open whether statements of wishes expressed subsequent to the establishment of the trust have equal standing.

The appellants contended that any statement of wishes given after the settlement of a trust should be treated as irrelevant because they violate the principle that settlors dispose of their property to a trust and in doing so give up control.

The Court of Appeal noted that although there were no New Zealand cases that directly considered the status of subsequent wishes, there were several New Zealand and overseas cases which impliedly supported the proposition that they could be taken into account.

It is well understood by lawyers that trustees are entitled to take into account the settlor’s wishes when exercising their powers and discretions but that they are not required to do so.

The court referred with approval to In Hartigan (1992) 29 NSWLR 405, where Mahoney JA for the New South Wales Court of Appeal stated at 431: There is, in my opinion, no distinction to be drawn between the views of a settlor expressed during the administration of the trust and those expressed before the constitution of it. Provided that the trustee is satisfied that views expressed before the constitution of the trust remain those of the settlor or would have been such, he may act upon or in accordance with those wishes.

The Court of Appeal concluded that the High Court was correct to accept the status of subsequent wishes, so the High Court’s following direction accurately reflected the law: Where subsequent wishes are inconsistent, [the trustee] is in principle entitled to consider the most recent wishes as overriding earlier wishes.

However, it remains a matter for Public Trust’s assessment, in the exercise of its discretion to vest or make distributions, whether in the circumstances the subsequent wishes of the settlor, …, should have that effect.

The other significant issue resolved on appeal was the extent to which the trustees of interrelated family trusts were obliged to consider the benefits received (or which might be received) by beneficiaries under different family trusts settled by the same settlor (my emphasis).

Interrelated trusts The appellants argued that the trusts were interrelated family trusts where, among other things, the assets of one trust were used to acquire assets settled on other trusts. They contended that the trustee must therefore take into account benefits, given and potentially to be given, to the beneficiaries of both trusts when making a distribution decision from either trust (my emphasis).

In support of this argument, reference was made to s 21 of the Trusts Act 2019 which states that in

performing their mandatory duties and default duties “… a trustee must have regard to the context and objectives of the trust” and Lewin on Trusts which states (20th ed, Sweet & Maxwell, London, 2020 at [29-057]): It often happens that members of a single family are beneficiaries of several settlements, perhaps many. The settlements may have the same or much the same trustees. Where the classes of beneficiaries overlap but are not identical it is a frequent error to treat the assets of all the settlements as a common pool for the family as a whole. When considering whether or how to benefit a given beneficiary out of one settlement, it is, of course, proper to take into account his entitlement or expectation under another. But it is not proper to exercise the powers conferred by one settlement so as to benefit someone who is not a beneficiary of that settlement.

But the respondents contended that: “[The High Court] … was correct to note that the trustee of one trust may take account of distributions from related trusts, to the extent they may be relevant to assessing the financial circumstances of a particular beneficiary. However, the fact that trusts in the [group of trusts] were largely settled by the same person or fell within the same family group or were intermingled did not mean that their assets should be treated as part of one collective pool”.

The Court of Appeal affirmed the principles of law promoted by the appellants but accepted the respondents’ submission that it is proper for the trustees to take into account what a beneficiary has received or may be entitled to under another trust but they were not required to do so (my emphasis).

In short, the requirement to take into account entitlements or expectations under other trusts, was permissive not obligatory. ■ Andrew Steele is an Auckland barrister ■ 05

THE JUDICIARY

Transitioning from the bar to the bench

I already had a couple of kids and was in a situation of not having much money or many prospects, so I thought I’d better do something.

I decided to go to law school.

Jenni McManus

06

Judge Grau

previous experience.

Judge Tan I come from a mixed background. Dad was a migrant and met Mum (who’s Māori and Pakeha) here in the Waikato.

I started in regional law firms and headed to Rotorua. I had all these plans and goals and was going to have my first child at 40.

But my life went the opposite direction. I was pregnant within six months of my first job which put the bejesus up my employers.

So, my practice has rolled with the changes that life gives you and things don’t always go in a straight line. I did family and general practice in Rotorua and Treaty of Waitangi work as well – a 50:50 split – then moved to Auckland where I did 100% treaty work. But I missed the family work and also needed childcare so I moved home to Waikato. I went out on my

own [as a barrister sole] in 2008. I’d been negotiating partnership with my firm at the time. They said yes, then a colleague suggested we go out on our own as barristers and I said, ‘why not’. It was nothing I had planned. I then chose to do 100% family law because with the treaty mahi, you are away a lot and my younger two children were only three and four.

Judge Yelavich My first role was at Meredith Connell.

I then travelled overseas and joined Neumegen & Co when I returned. I then went back to Meredith Connell.

I didn’t plan to be there that long, but the period covered birth of my three children.

I then became prosecutor at Kayes Fletcher Walker, doing murder trials, serious drug trials, sex trials and other serious crime. I conducted appeals to High Court and Court of Appeal, did

I started law later in life. I already had a couple of kids and was in a situation of not having much money or many prospects, so I thought I’d better do something. I decided to go to law school. I loved it and did really well but had no clear idea of what I was going to do afterwards except that I was going to be a lawyer.

I’d been a summer clerk at Chapman Tripp and decided that was enough for me in commercial law. I was rescued by an opportunity [to work] with Justice Glazebrook. That was my first job. It involved every kind of law under the sun and probably other planets as well as Justice Glazebrook is so thorough. I did that for a couple of years then ended up at the Commerce Commission because the pay was quite good – as good as the firms, but I was worried about the culture at the firms, the hours and all that sort of thing. I was a bit scared of getting myself into that, being responsible for two kids on my own.

It was mainly inhouse – all sorts of things. I even went on a search warrant which was quite exciting. But I wanted to go to court and didn’t see the opportunities there.

Then I had the opportunity to be Stephen Kós’ junior. I wasn’t going to pass that up but it was commercial

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Photo: asbe / Getty Images

To help deal with the mounting backlog of cases in the District Court created by covid-19, the government last year allocated extra budget for the appointment of more judges.

Now sitting in the Manukau District, Judges Karen Grau and Yelena Yelavich are among this group of new appointees who took up their roles in early 2021.

Late last year, the pair joined a panel discussion hosted by the Auckland Women Lawyers’ Association where they were asked how easy they had found the transition from the bar to the bench and how their background and practice had prepared them for their current roles. They were joined on the panel by Judge Kiriana Tan – another newbie judge who was sworn in just before the first covid wave hit New Zealand and sat for only two days before the country was plunged into its first lockdown in March 2020.

Judge Tan is of Chinese and Māori descent with tribal affiliations with Ngāti Ranginui and Ngāti Mutunga.

Judge Yelavich comes from what she describes as ‘a strong Croatian background’. Her father was born in the far north to Croatian parents and her mother was born in Croatia. Judge Grau describes herself as ‘diversity in one happy package’. Her ancestors came from the Middle East, Ireland and Spain.

First, facilitator Brigette Shone, special counsel at Russell McVeagh and an AWLA committee member, asked the three judges about their

Parole Board hearings and supervised junior and intermediate prosecutors conducting jury trials.

Feb 11 2022 Issue 2

Continued from page 06

law and, as great as it was and he was a fabulous boss, I realised I didn’t love commercial law. The problem was I didn’t really care about people fighting over money which is what a lot of it seemed to be.

A friend was working at Wellington Crown solicitors’ office, so I went to work there on a whim. As soon as I started doing that, I knew it was what I wanted to do. I spent seven years there, then decided to go and do a Masters.

I returned and quickly decided it was time for a change so I went to Crown Law where I spent most of my time in the criminal team, conducting appeals in the Court of Appeal and sometimes in Supreme Court.

In my final year, I was seconded to the Ministry of Justice and spent that time in Christchurch helping victims of the mosque attack. It was a strange, difficult but incredibly rewarding experience and it was soon after the sentencing that I had an interview and a couple of months later found out that I had a new job.

How did your upbringing influence your path?

Judge Tan When you first started out in practice, it was a case of who would employ you. I initially thought I would go to foreign affairs, but I didn’t get the job. With commercial firms, I didn’t fit

Judge Yelavich

I find there’s quite a lot of weight on my shoulders because the decisions have such a big impact on people’s lives

their mould. My background certainly influenced how I developed and what I’ve gone into subsequently. It’s always been grassroots practice for me, not necessarily the biggest cases out there but dealing with those on the ground. I think that does come from my upbringing because Mum and Dad were pretty grassroots. I was the typical stereotype, brought up at the back of a Chinese takeaway for a number of years but when you’re a kid, you don’t know you’re any different from anybody else. It wasn’t until my high school years that I realised my dad had an accent and people couldn’t understand his English. To me, he was just Dad. That background gives me an understanding now as I go through life dealing with people from different backgrounds. In the family law area, people go through hard times, it’s probably one of the most difficult times of their life, either the death of someone close or a divorce, arguing about children and money and starting life all over again, and domestic violence. It’s given me that compassion for the underdog and I think that has influenced how I do things. And I’ve always been an advocate for Maori rights.

I hope it has influenced how I do my new job as well because Manukau must

be one of the most diverse courts in the country, people come from different backgrounds and it’s understanding that we all come from a different starting place and that, I guess, moulds how we deal with life now.

Judge Grau I didn’t have any role models as lawyers or anything like that. I decided to be a lawyer because I needed a job and I thought that would be a good one, which luckily has turned out to be correct.

I think one of the things that influenced me to be in the criminal law area was that I found law very elitist.

When I started law school, I felt like a complete fish out of water. That didn’t last forever – I made lots of friends and had a great time. But being a summer clerk, I felt it was an alien world. I really did not feel I belonged there at all. It wasn’t that anyone was particularly horrible to me or anything like that – I just didn’t feel great in that world and I think that’s why I ended up in the criminal law which is a lot more downto-earth.

When I got to getting down and dirty in the District Court, I felt I was right at home.

I grew up in Riverhead in west Auckland and in many ways my upbringing was typical of most ‘westies’ in the 1970s. As was typical of that era, it was a no-frills upbringing. My three sisters and I went to the local schools and we holidayed once a year in the far north. My father and his brothers ran a trucking and quarrying business in west Auckland and I had a large number of uncles, aunts and cousins who lived within walking distance of our home. So, our social life and upbringing largely revolved around our family.

My sisters and I were all expected to have part-time jobs when we were at school, and I worked for a year to save money before I went to university.

That year gave me the chance to think about what I wanted to do. I didn’t know any lawyers so I didn’t really know what I was getting myself into, but law school seemed like an interesting challenge. But it’s hard to define how my upbringing has influenced my career path other than to say I have always carried the traditional Croatian values of loyalty, honesty and hard work with me throughout my career.

But a couple of aspects of my upbringing have helped me along the way: as I was growing up, I was exposed to a variety of cultures not only in terms of my own Croatian heritage but through the schools I attended, particularly Massey High School, where there were significant numbers of Māori

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Continued from page 07

and Pasifika students. The only Samoan GP in Auckland in the 1970s was my family doctor and as a child I actually thought Samoa was somewhere near Croatia because he and my mother would talk about the challenges they faced with learning the English language.

Now I’m working in a very diverse community in Manukau.

Another aspect of my upbringing relates to my mother’s struggles with English. She came to New Zealand in her twenties, married my father and became a stay-at-home mother to her four daughters. Her ability to work was constrained by her limited English and while she developed a good command of basic English, she struggled with more advanced language issues.

While all that hasn’t affected my career path as such, it has made me more aware as a prosecutor of the challenges that people who have English as a second language face.

What drove you to apply for the position as a District Court judge?

Judge Grau I was at Crown Law and enjoying doing appeals but after two or three years I thought I’d done enough. I spoke to a couple of people and some said, ‘why don’t you apply to be a District Court judge’? I, of course, did the ‘girl thing’ of saying ‘oh they’d never have me, don’t be ridiculous’. So, I dithered around for ages and then my manager said, ‘I’ll fill the form out and send it in for you if you don’t do it yourself’. So, we filled the form out and sent it in.

I needed a change. I was thinking of going out to be a barrister which is 08

probably what I would have done if I hadn’t got this job. I wanted to keep doing criminal law.

I’ve enjoyed the challenge of exercising my brain in places it hasn’t been to before. Each day’s a new learning curve.

Judge Tan There was an opportunity – a number of positions coming up in the District Court, a wish for diversity and I had a number of colleagues and those in Hamilton who gave me the push to give it a go.

Judge Yelavich I was enjoying my time at Kayes Fletcher Walker but felt it was time to move on and let some of the younger talented prosecutors take on the work I was doing.

I also felt that after being Crown counsel for many years, my background and experience would be well-suited to the role, not only in terms of applying practical, legal skills but also having appropriate personal skills including the ability to listen, to keep an open mind and to make difficult decisions when required. I also was aware that the decisions I would have to make could also have a profound effect on someone’s life but felt I was at the age and stage that I could take on such a significant role.

How has the experience been so far?

Judge Tan It’s been a roller-coaster ride, being in and out of level 4 for almost two years. What have I enjoyed? A whole lot of new learning and it challenges me as a person in terms of picking up something new each day. In family law, there are so many Acts you need to cross over …. and as family judges we’re also required to do 25% criminal which doesn’t go the other way so that’s been a huge learning curve.

Judge Yelavich I’ve been a judge for only eight months.

So far, I haven’t been presiding over jury trials and my work has been largely confined to lists, sentencings and judge-alone hearings but I have enjoyed the variety that each week brings, though covid has put a bit of a brake on that. But every day is different and the weeks just seem to fly by. I’m enjoying the comradery and collegiality of the Manukau common room and those judges I used to be a little afraid of. All of the judges have been very supportive and willing to share their knowledge and wisdom, so the transition has felt quite smooth in that way.

I knew the job would be busy and the work would be relentless but I was pretty shocked on walking into my chambers on my first day to see a massive pile of files on my desk. I was a little nervous on my first day on the job on my own. When the first few matters were called, I felt everyone in the courtroom was looking at me but by the end of that day, which went until around 8pm, I had well and truly gotten over my nerves.

In terms of the unexpected, I didn’t expect my life to be so tied to the judicial roster. There is so much work to get through in any one week that it’s impossible to look forward too far into the distance to see what I’ve got on. You’re working week-by-week on the files that have been placed before you and you need to be ready to pick up anything at short notice – bail applications for example.

I didn’t expect the lack of contact with the outside world. There are few

phone calls and a lot fewer emails but on the other hand, we’re lucky to have dedicated and helpful court staff in Manukau who contribute to the friendly environment we’re working in.

Overall, it’s been enjoyable. I’ve had a couple of difficult sentencings with family members of both defendants and victims who have been greatly impacted by the offending or were about to be impacted by the sentencing and it has been difficult to observe from the bench. But those are some of the challenges you have to overcome.

I’ve obviously appeared as Crown counsel at sentencings and it’s not something I’m unfamiliar with but at times, in more serious matters, I have felt a greater sense of responsibility to get it absolutely right.

Judge Grau We have a really collegial common room and I didn’t expect that. People are supportive, they’re kind. If you’re having a complete brain block about something and you don’t know what to do, there’s always someone who will listen and help you out.

I see it as a big plus that you don’t get many emails and phone calls though it’s a little bit weird, coming from practice. I find that I have to be superfocused all day on what I’m doing so I like it that there are no interruptions.

I was surprised at how exhausted I was at the beginning. I just couldn’t go home and make decisions about other things because I was so exhausted and being the decision-maker was harder than I thought too because as a lawyer, you’re on one side or the other, make submissions and your job’s done but when you’re the person who’s got to make the call, I find there’s quite a lot of weight on my shoulders because the decisions have such a big impact on people’s lives. ■

Feb 11 2022 Issue 2

INSURANCE

Companies face premium hikes, reduced cover in aggressive insurance market Listed companies and those about to list for the first time have seen the most significant challenges. Duallisted companies that appear on both the ASX and NZX have been particularly affected

Andrew Horne

Nick Frith

Andrew Horne & Nick Frith

have elected to de-list on one of the exchanges. This reflects insurers’ apprehension of the increased risk of claims against listed companies, which is driven primarily by the Australian Developments in company director liability in New Zealand experience of significant increases in the number and size of and Australia in the past three years have affected insurers’ those claims in recent years. perceptions of the risks faced by directors and officers.

The New Zealand claims experience has been different This has resulted in difficulties in obtaining and renewing but insurers – particularly foreign insurers – do not generally Directors and Officers or ‘D&O’ insurance cover. distinguish between the two markets.

Many insurers have demanded substantially higher Many companies have found their renewals in 2021 premiums, in some cases multiples of prior years’ costs, to have been less challenging than they were in the two even for reputable companies with good claims histories. previous years. This seems to reflect insurers’ At the same time, policy limits have reduced, comfort with premium levels after the exclusions from cover have been added and Companies dramatic increases of the past two years, deductibles have increased. that are fully combined with a relatively normal claims Insurers are increasingly demanding more detailed information from insureds and are dual-listed on experience of late. However, premiums continue to increase and restrictions upon taking longer to provide quotes for cover and the NZX and policy coverage continue to expand. negotiate terms. the ASX are Insurers have also returned to what the The reasons industry refers to as ‘technical underwriting’ seeing no or in which premiums and other terms are set by High-value D&O cover is provided on a global very limited reference to technical actuarial assessments scale with primary cover often written in New capacity from Zealand but upper layers of cover written of risk rather than being influenced by an insurers insurer’s understanding of a client’s business

by Lloyd’s of London or in other overseas and its specific risks and confidence in its markets. This means that New Zealand is management. viewed as one part of a global market and Exclusions from cover have continued international developments, or regional to increase in scope. Most recently, insurers have been factors such as increasing claims in Australia, influence the introducing exclusions for cover for certain types of cyber availability and terms of cover for New Zealand. incident.

The risk environment for directors in New Zealand also This is particularly the case for Lloyd’s underwriters who continues to change. Increased numbers of representative have been obliged to report on their cyber risk coverage actions or class actions by investors globally, and an since the beginning of 2021. This has coincided with the increasingly aggressive regulatory environment locally, mean growth of dedicated cyber insurance although insurers, faced New Zealand is no longer viewed as a relatively benign with increasing cyber claims, are also increasingly wary of environment for director risk. writing cyber insurance as well. Insurers are also introducing Insurers are increasingly concerned about other types of insolvency exclusions for companies that appear less robust claims, such as: or that operate in challenging sectors, including those ■ cybercrime and cyber incidents; affected by the covid-19 pandemic.

■ covid-19-related losses and insolvencies; Listed companies and those about to list for the first ■ AML/CFT regulatory prosecutions; time have seen the most significant challenges. Dual-listed companies that appear on both the ASX and NZX have been Continued on page 13 particularly affected. Some, albeit for a range of reasons, 09

FEATURED CPD

FINAL NOTICE

IMMIGRATION VISAS POLICY

2021 Resident visa and other immigration changes Livestream 2 CPD hrs Wednesday 16 February 4pm – 6pm Presenters Pooja Sundar, partner, D&S Law and Lauren Qiu, principal, Stay Legal Chair Stewart Dalley, partner, D&S Law

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FINAL NOTICE

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Webinar 1 CPD hr Thursday 17 February 12pm – 1pm Presenter Carlene O’Meagher, senior customer success manager, LawVu

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FINAL NOTICE

CRIME EVIDENCE WITNESSES

‘Court’ by forensics Workshop 4 CPD hrs Saturday 19 February 9am – 1.15pm Presenters Tom Coyle, managing director, Forensic Insight Ltd and Allie Coyle, director, Forensic Insight Ltd

Forensics never goes away. Every contact leaves a trace. This workshop will take you behind the scenes as a crime scene investigator, giving you a greater understanding of what type of evidence is preserved from the scene and used effectively in court, the importance of the chain of evidence and an insight into how to deal with expert forensic witnesses.

Spaces strictly limited (and Red level restrictions will be adhered to).

FIND OUT MORE 10

Feb 11 2022 Issue 2

adls.org.nz/cpd

Class and funded litigation NAVIGATE PROFESSIONAL OBLIGATIONS

Livestream 2 CPD hrs Wednesday 23 February 4pm – 6.15pm Presenters Paul Collins, barrister, Shortland Chambers; Philip Skelton QC, Bankside Chambers; Angela Parlane, managing director, Shine Lawyers NZ and Jonathan Woodhams, executive director, LPF Group Ltd

cpd@adls.org.nz

09 303 5278

The rapid growth in class and funded litigation has exposed a range of professional responsibility issues and challenges not encountered in regular litigation. The Conduct and Client Care Rules do not always fit neatly with the professional challenges lawyers face in this area. This seminar is intended to help lawyers navigate this difficult and potentially perilous field, identifying and avoiding professional issues before they become a problem.

LIVESTREAM

FPA and TPA claims: an update CLAIMANTS COMPLEXITY TRENDS

Live Stream 2 CPD hrs Thursday 24 February 4pm – 6.15pm Presenters Bill Patterson, partner, Patterson Hopkins and Greg Kelly, principal, Greg Kelly Law Limited Chair Brian Carter, barrister, Bastion Chambers

Drafting contracts in a digital world

Claims under the Family Protection Act 1955 and Law Reform (Testamentary Promises) Act 1949 are commonplace. They can also be complex, with some involving multiple claimants and/or defendants and both Acts. Focussing on topical issues, emerging trends and key case law, this seminar will provide a valuable update for those working in this area of practice.

LIVESTREAM

Livestream 1.5 CPD hrs Tuesday 1 March 4pm – 5.30pm Presenters Arran Hunt, partner, Stace Hammond and Edwin Lim, partner, Hudson Gavin Martin

Drafting contracts that take into account technology matters might not be frontof-mind but getting it wrong can have serious implications. With application to various areas of practice, this seminar will cover key terminology, boilerplate clauses, privacy and more.

INSIGHTS CONSIDERATIONS TIPS

LIVESTREAM 11

CPD IN BRIEF

Living with the Residential Tenancies Act

Webinar 1.5 CPD hrs Thursday 3 March 12pm - 1.30pm Presenters Des Wood, barrister and Nathan Tetzlaff, associate, Smith & Partners

The Residential Tenancies Act has had numerous amendments in recent years. The most recent amendment features some significant changes. Are you ready to advise a landlord or tenant? This session will be of interest to all lawyers and legal executives practising in Property law, and general practitioners. Property managers, letting agents and real estate agents might benefit from attending.

FIND OUT MORE

Personal effectiveness workshop 2022

Online Workshop 4 CPD hrs Thursday 3 March 9am – 1.15pm Presenter Tony Gardner, managing director, Archetype Leadership + Teams

Reflecting on your goals for this year? Are you performing at your peak? Is there room for improvement in your work methods? Coming to grips with how to be effective working virtually?

Returning for 2022, this well-received workshop will provide a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. It is facilitated by a leading high-performance consultant.

FIND OUT MORE

Property law half-day conference 2022

Modern slavery and responsible supply chains

In Person | Livestream 4 CPD hrs Thursday 10 March 12.30pm – 5pm Presenters Mark Hopkinson; Helen Johnson; Louis McLennan; Joanna Pidgeon; Andrea Watson; Sarah Blackmore; Paul Cogswell and Mark Robinson

This conference will offer practically focused sessions on a range of property law topics presented by experts in their fields. It will be valuable to all those practising in the area of property law.

Livestream 1 CPD hr Tuesday 15 March 4pm – 5pm Presenters Rebekah Armstrong, director, Business and Human Rights Consultants and head of advocacy and justice for World Vision and Nicola Swan, partner, Chapman Tripp

This seminar discusses the existing and emerging legal and ethical requirements around engaging suppliers and vendors, and the resulting impact on businesses. It outlines some practical steps businesses can take to minimise modern slavery-related risk in their supply chains and operations.

Chair Ian Jespersen

IN PERSON

LIVESTREAM

Rural Law Series: Demisting the Environmental Fog Thursday 17 March | Webinar | 1 CPD hour Visit adls.org.nz for more information.

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LIVESTREAM

Feb 11 2022 Issue 2

Continued from page 09

■ claims arising from large-scale or systemic sexual

■ companies that are fully dual-listed on the NZX

or other personal abuse which an organisation failed to prevent; ■ environment, sustainability and governance (ESG) obligations, including new reporting requirements; and ■ insolvency claims.

and the ASX are seeing no or very limited capacity from insurers.

In all cases insurers are reducing the limits of cover they are offering, to reduce their exposure.

How to improve renewals

Most affected

■ Select and instruct an appropriate broker carefully.

■ Engage early with insurers. The process is taking

Public-listed companies have seen the most significant increases in premiums and reductions in cover, reflecting insurers’ perceptions of their increased risk. However, the type of company and listing is important: ■ companies listed only on the NZX have the widest appeal of any listed companies to insurers; ■ insurers are more likely to consider companies listed on the NZX with foreign exempt status on the ASX, as they are usually entitled to comply only with relevant New Zealand rules;

longer and more time may be required.

■ Expect insurers to misunderstand your risk at first and that you will need to provide more information.

■ Expect to be more open with insurers about what the company is doing.

■ Provide information about company-specific risks and the risks facing the wider sector, including any mitigating factors. Insurers’ willingness to write cover has become more considered and the perceived quality of the risk for the company and its sector plays an increasingly significant role.

■ Expect lengthy and detailed questioning and ■

■

■

■

demands to see procedures to reduce risk.

Consider bringing in senior executives to speak directly to insurers so they can see the people responsible for corporate governance in action.

Brief them well.

Expect to explain why your risk is not the same as others’ and otherwise resolve insurer concerns.

Consider using hard data and analytics. Legal help may be of value in explaining risk to insurers.

Consider priorities for cover and where cover limits may be appropriately reduced or combined for risks that are unlikely to occur together.

Expect to pay more and receive less. Do not expect to play insurers off against each other – it may work against you. ■

Andrew Horne and Nick Frith are partners at MinterEllisonRuddWatts ■

NOW PUBLISHED

Employment Law In Aotearoa New Zealand, 3rd Edition Authors Gordon Anderson, Dawn Duncan A comprehensive, concise account of New Zealand employment law in a format accessible to both students and legal practitioners. This third edition updates developments since 2017, including legislative changes such as the introduction of pay equity bargaining and the enactment of the Public Service Act 2020, and developments in case law including several significant

Court of Appeal decisions.

Price for ADLS members $117.39 plus GST* Price $130.43 plus GST* To purchase this book please visit https://adls.org. nz or contact the ADLS bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: thestore@adls.org.nz * + Postage and packaging

Photo: Michael King / EyeEm / Getty Images

ADLS events postponed ADLS has put a hold on events until the traffic light setting changes. We will update you with events we can hold as soon the position becomes clearer. Watch this space!

Ticket holders for cancelled or postponed events are being contacted by email.

Please contact events@adls.org.nz if you have any queries.

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WILL INQUIRIES

Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document.

LawNEWS: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz

ADLS, PO Box 58, Shortland Street,

DX CP24001, Auckland 1140

Fax: (09) 309 3726

(09) 303 5270

CAMERON Arthur Lluwellyn

KADDO Ramy Thair

• Late of 409/770A Great South Road, Wiri • Truck driver • Aged 41 / Died 25’12’21

• Late of 122 Popes Road, Takanini, Auckland • Single • Student • Aged 32 / Died 07’12’21

CUFF Barbara Douglas Bain • Late of Ngaruawahia/Glen Massey, previously resided in the Wellington area • Private assistant • Aged 88 / Died 28’11’21 DRABBLE John David

KOMENE Kaylene Yvonne • Late of 39 Whatuwhiwhi Road, Karikari Peninsula, Kaitaia • In a de facto relationship • Housekeeper • Aged 68 / Died 01’11’20

• Late of 28 Chester Street, Kaiapoi • Died 03’01’22

GRAY Russell Murray

THOMAS Barry Leonard

• Late of Waihi • Aged 57 / Died 20’08’21

• Late of 30 Rosario Crescent, Red Beach • Widower • Retired • Aged 86 / Died 21’12’21

• Late of 27 Esther Place, Red Beach, Hibiscus Coast • Married • Retired • Aged 95 / Died 20’12’21

Hobson Towers West, 26-28 Hobson Street

We have a 117sq.m. open plan office available to lease as a barrister’s chambers. The office has a sunny aspect, a separate meeting room and kitchen, and comes with a carpark – additional parking is available at the Wilson carpark which is directly across the road.

We are looking to lease this space long-term to the right tenant.

It will appeal to lawyers practising at the Auckland District Court in particular, as it is only a short walk away.

Inquiries to: phil.hamlin@hamlinlaw.co.nz or phone 09 377 1499

UNIQUE CHARACTER OFFICE An entire floor in a well-established and centrally located and truly unique character building is now available.

Comprising 12 offices and meeting rooms (approx. 340 sq) this space would suit a small to medium legal practice.

All enquiries to: advertiser@adls.org.nz Ref: ‘floorspace’

MAYNARD Daniel John

• Late of Levers Road, Matua, Tauranga • Earthmover • Aged 69 / Died 07’08’21

HILL Charles Edward

Barristers Chambers available for rent

This space could be yours LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

Get your message in front of them.

Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz

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Feb 11 2022 Issue 2

SOLICITOR – LITIGATION

FOR SALE Law practice + Freehold property

We are a boutique firm specialising in unit titles advice and dispute resolution looking for a junior solicitor to work in our litigation team. The role is primarily debt collection but with scope to expand to other areas.

Rarely does an opportunity such as this come along. A wellestablished, successful law practice plus a freehold title is offered for sale in South Auckland.

Please apply to Price Baker Berridge by email to zbinns@pbb.co.nz for the attention of Clinton Baker.

Working primarily in conveyancing, estates and relationship property, but with scope to expand, this well-established suburban practice provides a unique opportunity for either a sole practitioner, or perhaps 2 lawyers to establish their futures.

Currently operating as a sole practice, with support, this centrally located business offers a home and income proposition and an excellent property investment.

After more than 20 years at Keegan Alexander, Sean McAnally has commenced practice at the separate bar with FortyEight Shortland Barristers.

The accompanying freehold property contains two separate dwellings, one a dedicated office the other residential.

Sean accepts instructions in most areas of commercial litigation and in particular company and shareholder matters, insolvency, trusts and property and contractual disputes.

The current principal is willing to remain with the new owner(s) for an agreed period to ensure a seamless transition.

All enquiries in strictest confidence to: advertiser@adls.org.nz Quoting reference: SA1221

T: 027 489 1235 or E:sean@seanmcanally.co.nz

‘Court’ by Forensics Saturday 19 February | 9.00am - 1.15pm This workshop will take you behind the scenes as a crime scene investigator, so that you will get a greater understanding of what type of evidence is preserved from the scene and used effectively in Court, and the importance of the chain of evidence, plus an insight into how to deal with expert forensic witnesses.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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Senior Lawyer

Community Law South Auckland Legal aid lawyer fixed term

We are looking for a Senior Lawyer with a minimum of 5 years’ PQE to join our team. This role is to take over the workload of a Director who is retiring.

This is a great opportunity for an ambitious and dynamic person with a sound understanding of Trusts, Property and Business.

(lead provider status)

The ability to supervise Estate work undertaken by another team member would be beneficial.

Community Law South Auckland is a Community Law Centre with offices in Otara and Papakura. We wish to add to our legal service offerings and therefore are seeking a Legal Aid Lead Provider in Family and Civil to work out of our Papakura office. This position is a one year fixed-term role.

Key attributes required for this role: • Have experience in dealing with clients and able to manage your own files with minimum supervision.

• Relate well to clients and referrers.

• Have good time management, interpersonal skills, attention to detail and operate in a collaborative team environment.

• Be able to work in a Paperlite office and manage an electronic file using Infinity Software.

It is expected that you will deal with a minimum of 3 Legal Aid clients per day with this number increasing as time progresses.

We offer: • An innovative firm with a great team environment.

• An opportunity to be part of one of the Eastern Suburbs’ largest legal practices.

• Market salary, team monthly and annual bonus schemes.

• Excellent established precedents, systems and technology.

• Free parking and iPhone.

• The excellent training, conferences and benefits that are available to members of NZ LAW legal firms.

It is also an expectation that you will mentor more junior members of staff.

Please email your resume and covering letter to our Practice Manager, Brandon Tam brandont@dglaw.co.nz or Director, Kelly McCullough kellym@dglaw.co.nz.

Applications close on 7 March @ 5.00pm.

We have culturally diverse staff who all have passion and empathy towards those we serve. You will be working alongside a fun, supportive and dedicated team.

Please send a cover letter and C.V. to robyn.martin@clsstlaw.com

If you have any queries please do not hesitate to phone me on 022 065 0164.

No Agencies please

Self-Represented Litigants: Challenges & Solutions Wednesday 23 March | 4.00pm - 5.30pm This webinar will offer up strategies and practical insights into how lawyers can effectively deal with situations involving selfrepresented parties. It will particularly focus in on the challenges encountered by civil and commercial litigators, and those practising in criminal, family, and employment law.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd